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United States Court of Appeals
Fifth Circuit
F I L E D
January 7, 2004
In the
Charles R. Fulbruge III
United States Court of Appeals
Clerk
for the Fifth Circuit
_______________
m 02-41721
_______________
GARY J. SALINAS,
Petitioner-Appellant,
VERSUS
DOUG DRETKE,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m C-02-CV-214
_________________________
Before SMITH, BARKSDALE, and CLEMENT,
untimely when it was originally filed but
Circuit Judges.
argues that intervening events have rendered
his petition premature, not late. Specifically,
JERRY E. SMITH, Circuit Judge:
Salinas reasons that the Texas Court of Crim-
inal Appeals effectively restored him to the dir-
Gary Salinas's petition for writ of habeas
ect review phase of his appeal when it granted
corpus was denied as time-barred. Proceeding
him the right to file an "out-of-time" petition
pro se, Salinas concedes that his petition was
for discretionary review in that court, and that

this action requires federal courts to measure
Playing the cards he was dealt, Salinas filed
the statute of limitations under the Anti-
a PDR and a motion for extension of time on
Terrorism and Effective Death Penalty Act
April 7, 2001, but the PDR was dismissed as
("AEDPA"), 28 U.S.C. § 2244, only from the
time barred on April 19, 2001. He filed a state
moment at which the Court of Criminal Ap-
application for habeas relief, arguing in part
peals subsequently declined to review the mer-
that his appellate counsel had failed to advise
its of his petition. As a result, Salinas avers,
him timely of his right to file a PDR pro se.
his petition should have been dismissed
Following a remand to determine when Garza
without prejudice. Concluding that the relief
had informed Salinas that his conviction had
granted by the Court of Criminal Appeals had
been affirmed, the Court of Criminal Appeals
no effect on AEDPA's statute of limitations,
denied Salinas's application for habeas relief
we affirm.
without written order on March 13, 2002.
I.
Salinas filed a federal habeas petition on
Salinas was charged with capital murder
April 28, 2002. The state asked the district
and attempted capital murder. A jury found
court to dismiss the petition as time-barred.
him guilty and assessed two life sentences.
AEDPA provides that "[a] 1-year period of
The intermediate court of appeals affirmed in
limitations shall apply to an application for a
an unpublished opinion on July 20, 2000.
writ of habeas corpus by a person in custody
pursuant to the judgment of a State court."
The next logical step in Salinas's appeal
See 28 U.S.C. § 2244(d)(1). Under the pres-
would have been the filing of a petition for dis-
ent facts, this period runs from "the date on
cretionary review ("PDR") with the Court of
which the judgment became final by the con-
Criminal Appeals. He had thirty days from
clusion of direct review or the expiration of
July 20 in which to do so, or forty-five days in
the time for seeking such review." See 28
which to request an extension of time. See
U.S.C. § 2244(d)(1)(A).1
TEX. R. APP. P. 68.2(a), (c). This did not hap-
pen, however, because he spent the next seven
In Texas, a PDR is considered to be part of
months in jail, unaware that his conviction had
the direct review process, which ends when
been affirmed. His lawyer, Edward Garza, had
the petition is denied or when the time avail-
prepared a letter notifying him of the result,
able for filing the petition lapses. Roberts v.
but neglected to mail it.
Cockrell, 319 F.3d 690, 693 (5th Cir. 2003).
It was not until March 6, 2001SSin re-
1
sponse to an inquiry from SalinasSSthat Garza
The limitations period runs from the later of
notified him that the appeal had been unsuc-
the date on which (1) direct review was concluded
cessful and that his court-appointed duty to
in the state courts; (2) a state created impediment
to filing an application was lifted; (3) a new, and
represent him was now terminated. In re-
retroactively applicable, constitutional right was
sponse to a second letter, Garza told Salinas
recognized by the Supreme Court; or (4) the fac-
that, time restrictions notwithstanding, he did
tual predicate of the claim could have been dis-
not think Salinas possessed an issue meriting
covered through the exercise of due diligence. 28
discretionary review and that Salinas's only
U.S.C. § 2244(d)(1)(A)-(D). Salinas does not ar-
remedy was "perhaps" to file a habeas petition.
gue that any provision other than the first applies
here.
2

Salinas's appeal was affirmed on July 20,
Court of Criminal Appeals.2 In light of this
2000, and he had thirty days from that date to
development, his letter to the district court
file a PDR with the Court of Criminal Appeals.
asked that it dismiss his federal habeas appli-
Because August 19, 2000, was a Saturday, he
cation, without prejudice, for failure to exhaust
had until August 21 to file a PDR and until
state remedies. When the court received that
August 21 of the following year to seek fed-
letter several days later, it concluded that it
eral habeas relief. With eighteen days remain-
was without jurisdiction to grant the requested
ing on the federal clock, he filed a state
relief, because it had already ruled on the
application for habeas relief, an event that tolls
state's motion to dismiss the petition as time-
the federal statute of limitations. See 28
barred.
U.S.C. § 2244(d)(2). Thus, when his state
habeas application was denied by the Court of
II.
Criminal Appeals on March 13, 2002, he had
The question is whether, as a corollary to
eighteen days to file a federal habeas petition.
the revival of Salinas's right to file a PDR,
The petition was not filed, however, until April
AEDPA's one-year statute of limitations has
28.
not yet run on his petition. If it has run, we
must also consider whether the district court
A magistrate judge recommended that the
abused its discretion in declining equitably to
district court equitably toll limitations, but the
toll limitations.
district court disagreed and dismissed Salinas's
petition on November 18, 2002. On the same
A.
day, and without knowledge of the district
The state argues that the issue is before us
court's action, Salinas mailed a motion to the
pursuant to an improvidently granted certifi-
district court informing it of the central fact in
cate of appealability ("COA"). The district
this appeal: Acting on its own motion on
court dismissed Salinas's petition as untimely
October 30, 2002, the Court of Criminal
before it knew of the Court of Criminal Ap-
Appeals had reconsidered the state habeas
peals' decision to grant the "out-of-time"
petition and decided to award Salinas the right
PDR, and as a result, the state argues, the dis-
to file an "out-of-time" PDR. The effect of
trict court did not have an opportunity to con-
this was to "return [Salinas] to the point at
sider the issue we decide today. Citing United
which he can file a petition for discretionary
States v. Armstrong, 951 F.2d 626, 630 (5th
review . . . . For purposes of the Texas Rules
Cir. 1992), the state contends that the issue
of Appellate Procedure, all time limits shall be
therefore was not preserved for appeal.
calculated as if the Court of Appeals' decision
had been rendered on the day the mandate of
We disagree. Salinas's letter informing the
the Court of Criminal Appeals issues." Ex
district court of the action taken by the Court
Parte Salinas, No. 74,462, at 2 (Tex. Crim.
App. 2002).
2 The Court of Criminal Appeals subsequently
Thus, under state law, Salinas was restored
rejected Salinas's PDR, Salinas v. State, PDR No.
to the position of a recently convicted felon,
2102-02 (Jan. 22, 2003), but this fact has no bear-
eligible to pursue a form of direct review in the
ing on the question whether the Court of Criminal
Appeals' initial grant of the right to file a PDR al-
ters Salinas's status under AEDPA.
3

of Criminal Appeals and asking for a dismissal
On this basis, Salinas urges that the statute
without prejudice was received within ten days
of limitations could not have lapsed in April
of the entry of judgment. It is therefore
2002, because the prescription period should
properly construed as a Federal Rule of Civil
have begun only on the conclusion of direct re-
Procedure 59(e) motion to alter or amend the
view, see 28 U.S.C. § 2244(d)(1)(A), and di-
judgment, and the issue was properly before
rect review once again was pending on No-
the district court.3 As a result, we have juris-
vember 18, 2002, when the district court dis-
diction to review Salinas's claims.
missed his petition. Thus, Salinas argues, his
conviction was "de-finalized," and the statute
B.
of limitationsSSthough legitimately initiated in
We must consider the effect the Court of
August 2000SSshould be deemed to have be-
Criminal Appeals' order has on AEDPA's stat-
gun again with the rejection of the PDR in
ute of limitations, a question of law we review
January 2003.
de novo. Egerton v. Cockrell, 334 F.3d 433,
436 (5th Cir. 2003). When the Court of
We disagree. On its face, AEDPA provides
Criminal Appeals grants the right to file an
for only a linear limitations period, one that
"out-of-time" PDR, it restores the petitioner to
starts and ends on specific dates, with only the
the position he was in when he first possessed
possibility that tolling will expand the period in
the right to petition for discretionary review.4
between. See § 2244(d)(1), (2). So long as
A defendant who still has the right to file a
the petitioner is being held pursuant to the
PDR is considered to be in the midst of the di-
same state court judgment, nothing in AEDPA
rect review process. Roberts, 319 F.3d at 693.
allows for a properly initiated limitations
period to be terminated altogether by collateral
state court action. Rather, the statutory
framework only provides for the tolling of lim-
3
itations during the pendency of state collateral
See Harcon Barge Co. v. D&G Boat Rentals,
review. See § 2244(d)(2).
Inc., 784 F.2d 665, 667 (5th Cir. 1986) (en banc)
("[W]e hold that any post-judgment motion to alter
or amend the judgment served within ten days after
Thus, the issue is not whether the Court of
the entry of the judgment . . . is within the un-
Criminal Appeals' action revitalized Salinas's
restricted scope of Rule 59(e) and must, however
limitations period, but rather whether the ex-
designated by the movant, be considered as a Rule
istence of that potential relief prevents the lim-
59(e) motion for purposes of Fed. R. App. P.
itations period from starting to run until after
4(a)(4).").
that level of appeal has been denied. That is to
say, we need to determine whether, in Texas,
4 See Ex Parte Salinas, No. 74,462, at 2 ("The
the mechanism by which Salinas obtained the
proper remedy in a case such as this is to return
right to file an "out-of-time" PDR is part of
Applicant to the point at which he can file a peti-
the direct or collateral review process. If that
tion for discretionary review."); see also Ex Parte
relief comes as a result of direct review, there
Torres, 943 S.W.2d 469, 472 (Tex. Crim. App.
would be no basis for limitations even to begin
1997) (stating that "granting an out-of- time appeal
running until the Court of Criminal Appeals
restores the pendency of the direct appeal"); Ex
Parte Daigle, 848 S.W.2d 691, 692 (Tex. Crim.
has finalized the judgment by declining to
App. 1993) (returning a petitioner "to the point at
grant relief on that level of appeal. If, on the
which he can give notice of appeal.").
4

other hand, an "out-of-time" PDR is awarded
authorized to grant this form of relief only
only as a result of the collateral review
through state habeas proceedings. As a result,
process, limitations is tolled merely while the
when a petitioner convicted in the Texas sys-
petitioner seeks to obtain that relief.
tem acquires the right to file an "out-of-time"
PDR, the relief tolls AEDPA's statute of lim-
After reviewing the relevant state law,5 we
itations until the date on which the Court of
conclude that the Court of Criminal Appeals is
Criminal Appeals declines to grant further re-
lief, but it does not require a federal court to
restart the running of AEDPA's limitations pe-
5
riod altogether.6
The state argues that a statement in Roberts
prevents us from looking at state law to resolve
Texas caselaw shows that to acquire the
Salinas's claims. We disagree. In Roberts, we
right to file an "out-of-time" PDR, a petitioner
were asked to determine whether, for purposes of
§ 2244's statute of limitations, a state appellate
first must file a state habeas petition.7 That
judgment becomes final on the date on which it is
was the mechanism Salinas used and that was
issued, or the date on which the mandate is re-
leased. Roberts, 319 F.3d at 693. In the course of
holding that the relevant date is the one on which
the judgment is issued, we stated that we could
6 In most cases in which the Court of Criminal
"find no reason to look to state law to determine
Appeals grants the right to file an "out-of-time"
when a state conviction becomes final for the
PDR, the federal statute of limitations will not
purposes of § 2244(d)(1)(A)." Id. at 694.
lapse until after the Court of Criminal Appeals re-
ceives the petition and decides whether to hear the
The state's argument ignores the fact that the
case on the merits. This is because the statute of
court in Roberts was asked only to determine when
limitations is tolled during the pendency of the col-
federal law considers an action to have been taken,
lateral proceedings that the petitioner uses to
not whether a state proceeding is part of the state's
request the right to file an "out-of-time" PDR.
"direct review" process at all. The issue we
Salinas's case is unusual, because the Court of
address today is wholly distinct from one in which
Criminal Appeals initially denied his petition for
we assume, at the outset, that direct review ended
habeas relief and granted the "out-of-time" PDR
with the occurrence of a specific event, and simply
only on its own motion. That action ceased the
seeks to ascertain the date on which federal law
tolling of limitations, allowing it to run fully before
considers that event to have occurred.
the Court of Criminal Appeals granted relief. Had
the Texas court instead left Salinas's application
In contrast, we are asked to look at a category
pending until the day on which it allowed him to
of appealSSthe "out-of-time" PDRSSand determine
file the "out-of-time" PDR, limitations would have
whether it is part of that state's direct or collateral
remained tolled until January 22, 2003, when the
processes. That is not a question one can answer
court declined to exercise further review.
without looking at the state system to ascertain
whether it has been designated as part of direct or
7 See Ashorn v. Texas, 77 S.W.3d 405, 409
collateral review. State law defines the contours of
(Tex. App.SSHouston [1st Dist.] 2002, pet. ref'd)
the state appellate process, and it is only by looking
(Opinion on motion for reh'g) ("The appropriate
at the state system that we can determine whether
vehicle for seeking an out-of-time appeal from a
Salinas's right to file an "out-of-time" PDR comes
final felony conviction is by writ of habeas corpus
before, or after, the conclusion of direct review in
pursuant to Article 11.07 of the Texas Code of
state courts.
Criminal Procedure.").
5

used in every other case that we have found. 8
III.
In the alternative, Salinas asks for equitable
This conclusion is buttressed by the fact
tolling of limitations. AEDPA's statute of lim-
that the Texas Rules of Appellate Procedure
itations may be equitably tolled, but only in
make no provision for the issuance of an "out-
"rare and exceptional circumstances." Davis
of-time" PDR. Rule 68.2, Texas Rules of Ap-
v. Johnson, 158 F.3d 806, 811-12 (5th Cir.
pellate Procedure, sets a thirty-day limit for fil-
1998). "[T]he decision to invoke equitable
ing an original PDR. There is a provision for
tolling is left to the discretion of the district
seeking an extension, but Salinas failed to
court, and we review such decisions only for
comply with its mandate that a motion for ex-
abuse of discretion." Cousin v. Lensing, 310
tension be filed within fifteen days of the last
F.3d 843, 847-48 (5th Cir. 2002), cert. denied,
day for filing the petition. See TEX. R. APP. P.
123 S. Ct. 2277 (2003).
68.2(c). Beyond that, a petitioner has no right
to seek relief directly from the Court of Crim-
In Cousin, id. at 846, we considered wheth-
inal Appeals; instead, all relief must be re-
er it was an abuse of discretion not to toll lim-
quested through collateral proceedings.
itations where a petitioner was harmed by the
actions of an attorney who, after receiving no-
Therefore, because Salinas's right to file the
tice that his client's in forma pauperis motion
"out-of-time" PDR is necessarily the product
had been denied, failed to inform his client for
of state habeas review, it does not arise under
two years that the five-dollar filing fee needed
the "direct review" procedures of the Texas
to be paid. Cousin argued that the district
judicial system. Accordingly, the Court of
court should have equitably tolled AEDPA's
Criminal Appeals' granting of Salinas's writ
limitations period, because neither he nor his
does not alter the fact that limitations set forth
new attorneys received notice of the denial of
in 28 U.S.C. § 2244(d)(1)(A), properly began
his motion. Id. at 848. We noted that
to run on August 21, 2000, and fully lapsed on
"[e]quitable tolling is warranted . . . only in
March 31, 2002.9
situations where the plaintiff is actively misled
by the defendant . . . or is prevented in some
extraordinary way from asserting his rights."
8
Id. (citations omitted). Following other cir-
See, e.g., Ex Parte Rosales, 2003 WL
22410055, at * 1 (Tex. Crim. App. Oct. 22, 2003)
cuits, we concluded that "mere attorney error
(granting the right to seek an "out-of-time PDR" by
or neglect is not an extraordinary circumstance
filing a state habeas petition); Ex Parte Thompson,
2003 WL 22410064, at * 1 (Tex. Crim. App. Oct.
22, 2003) (same); see also Ex Parte Wilson, 956
9(...continued)
S.W.2d 25 (Tex. Crim. App. 1997) (setting out the
appeal process. If there is any inconsistency be-
standard for relief).
tween our decision today and that in Orange, it is
only because of the underlying differences in the
9 This analysis is consistent with that of a sister
laws of the states over which we preside. The Ok-
circuit, even though we reach a different result. In
lahoma Rules of Appellate Procedure specifically
Orange v. Calbone, 318 F.3d 1167, 1170-71 (10th
provide for the possibility of an "appeal out of
Cir. 2003), the court held that the "appeal out of
time," and they allow its use in both direct and
time" procedure offered by the Oklahoma Court of
collateral proceedings. Id. at 1171. Texas has cre-
Criminal Appeals was part of that state's direct
ated a different judicial system, one that does not
(continued...)
provide the same right.
6

such that equitable tolling is justified." Id. at
849. In light of Cousin, the district court did
not abuse its discretion when it held that Sali-
nas had failed to show the existence of the sort
of "rare and exceptional" circumstances that
would warrant equitable tolling.
The judgment is AFFIRMED.
7